Sarbjeet Singh (Migration) [2023] AATA 4449 (9 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Sarbjeet Singh
CASE NUMBER: 2313775
HOME AFFAIRS REFERENCE(S): BCC2023/3607767
MEMBER:Andrew McLean Williams
DATE:9 November 2023
PLACE OF DECISION: Brisbane
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 09 November 2023 at 3:30pm
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – prescribed fee – non-payment of fee – No jurisdictionLEGISLATION
Migration Act 1958 (Cth), ss 65, 347,
Migration Regulations 1994 (Cth), rr 4.10, 4.13CASES
Braganza v MIMA (2001) 109 FCR 364
Kirk v MIMA (1998) 87 FCR 99STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision of a Delegate of the Minister for Home Affairs, dated 22 August 2023, to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (Cth) (‘the Act’).
The review application form was lodged with the Tribunal on 5 September 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
Pursuant to s.347(1) of the Act and regulation 4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and regulation 4.10, and accompanied by the prescribed fee unless a determination has been made under regulation 4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in regulation 4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 12 September 2023. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under regulation 4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.
The prescribed fee has not been paid and no determination has been either made (or requested) that the fee should be reduced prior to the expiry of the prescribed period. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.
DECISION
The Tribunal does not have jurisdiction in this matter.
Andrew McLean Williams
Member
- AGLC
- Sarbjeet Singh (Migration) [2023] AATA 4449
- Case
- [2023] AATA 4449
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Tribunal was whether it possessed jurisdiction to hear the application for review, given that the prescribed fee had not been paid. The Tribunal was required to determine if the non-payment of the fee, without a prior request for reduction, rendered the application invalid and consequently divested the Tribunal of its jurisdiction.
The Tribunal reasoned that the legislative framework governing visa applications and reviews mandates the payment of prescribed fees. In this instance, the prescribed fee had not been paid, nor had any request been made for its reduction within the stipulated timeframe. Consequently, the Tribunal concluded that the application for review was not a valid one, and therefore, it lacked the necessary jurisdiction to proceed with the matter. The Tribunal's decision was that it did not have jurisdiction.
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